When the Veterans Health Administration commits medical negligence

While many of us think of the U.S. Department of Veterans Affairs as a single entity, its functions are actually divided among three separate administrations: The Veterans Benefits Administration, Veterans Health Administration, and the National Cemetery Administration. The Veterans Health Administration, or VHA, is the part that administers the VA’s hospitals and health care facilities. This currently includes over 1,700 health care sites, providing medical services to 8.76 million veterans annually. The VHA is — by far — the largest integrated healthcare system in the United States.

Feelings about VA health care facilities differ widely among veterans. Some have been very happy with the services they have received from the VA’s hospitals and clinics, while others have been very disappointed. Those sentiments aside, it must be acknowledged that in any organization the size of the VHA, mistakes are going to be made from time to time. Veterans who are the subject of medical negligence at the hands of the VA have several options for addressing the issue.

First, if a veteran becomes disabled or dies as the result of medical negligence by the VA he or she is entitled to file a claim under 38 U.S.C. § 1151. These claims, commonly referred to as “1151 Claims,” are filed directly with the VA. If granted, the VA is required to treat the disability or death as if the death or disability were a service-connected. As a result, a grant of this type of claim will entitle the veteran to receive monthly disability payments. While a veteran is entitled to pursue this type of claim on his own, he is also permitted to use the assistance of an attorney or non-attorney advocate.

A second option available to the veteran (or in the case of death, to the family) is to file a medical negligence lawsuit against the VA under the Federal Tort Claims Act. Such a lawsuit would typically require the court to apply the law of the state in which the claim occurred, but would require the veteran to comply with the procedural requirements of the FTCA. Two significant issues generally arise in connection with these types of lawsuits. First, the veteran will want to understand the law of the state in which his claim arises, particularly as it may relate to any caps that the state has imposed with respect to monetary damages. Second, the veteran will need to be wary of the strict time limits imposed by the FTCA. The failure to meet the statutory deadlines will result in a denial of the claim before it’s even heard on the merits. The veteran would be well advised to seek the assistance of legal counsel as soon as possible if he desires to explore such a lawsuit against the VA.

Finally, veterans should be aware that they are not required to choose between the two options discussed above. The law currently permits a veteran to file an 1151 Claim as well as a lawsuit if desired. However, if both are pursued the veteran should be aware that there are certain circumstances in which one award may be offset by the other in order to avoid double recovery.

About the Author

About Travis James West

Travis James West is a former member of the 75th Ranger Regiment and one of the founding partners of West & Dunn, a law firm dedicated to providing quality legal services and business counseling to individuals and businesses, with a particular focus on assisting the veterans.

BECAUSE, FACTS DON'T TAKE SIDES

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Michelle B

The 1151 process actually sounds a lot like filing a worker's compensation claim for being injured on the job (notoriously difficult to win, in some states), and the FTCA sounds not all that different from the process of filing a medical malpractice lawsuit. I'm sure there are some differences, but I'm not sure the military side of the coin sucks any more than the civilian side when it comes to that. Both systems tend to require that you exhaust your administrative remedies before litigation, and finding (and paying for) a separate doctor to evaluate injuries to determine malpractice rather than pre-existing condition (which is almost guaranteed to be the line beaten to death by the attorneys representing the malpracticing physician, whether it's actually true or not.)

Yankee Papa

.
...One word of warning. There are many reputable veterans outfits out there... (American Legion, VFW, MCL... etc...)
Many locals have people who assist vets. The intention is good... but be very careful... Some locals, the fellow that helps you has the job because he has the most time or is the only one who wants it... That's ok for routine filings like initial application for education benefits, etc... but if you have any kind of a claim... the well-meaning soul might be in way over his head... YOU CAN NOT APPEAL A CLAIM REJECTION ON THE GROUNDS THAT YOUR ADVISER WAS NOT COMPETENT... The VA's attitude is; "You picked him... you live with it..."
...Some outfits have a member who is a lawyer who is experienced and does pro bono or low cost. Or you might need a firm that specializes... (Make sure you check with veterans associations re their reputations...)
-YP-

tim e

So your wait time was 45 days after it happened or did you have surgery? They offered me "veterans choice" care when the VA couldn't help within the allotted time but when I tried to get an appointment with private providers they were an even longer wait - wait times are there in the private health care system as well.
The mental health services availability is probably the number one issue the VA needs to address, the veterans suicide rate is a national disgrace.

Brandon Webb

Good article Travis. It's a culture of bureaucracy that needs to change. Plenty of good healthcare providers whose hands are tied because of red tape. When I dislocated my shoulder they told me it would be 45 days to rehab...so I snuck into rehab and asked for the therapy bands and rehab sheet. Problem is, when guys really need mental health help, and they get put off, there's no sneaking in to a provider...

Joni S

I was glad to see that signed. I do hope it has some teeth and will actually work. I do hope they can clear the backlog and not just by rubber stamping a bunch of cases to get them off their desk. It seems that the whole trouble with the backlog is folks already doing that- rubber stamping or "loosing" paperwork, etc, etc. All of which I find appalling. I do hope our President will keep to his promise and fix the VA. I, like many, am not holding my breath, but waiting to see what happens. I continue to write my Congressman for any story I read of mistreatment. Thanks Pat.

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